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July 26, 2010

WHAT NEXT AFTER CITIZENS UNITED?

By Lawrence HurleyDaily Journal Staff Writer

WASHINGTON - As election season approaches, confusion reigns over how the U.S. Supreme Court's recent landmark campaign finance ruling that eased restrictions on independent corporate-funded expenditures will influence events.

Multiple questions are being debated by campaign finance experts, including whether corporations and unions will seek to exploit their new freedoms, how the Federal Election Commission will respond, and how much information the public will have about the paymasters behind TV attack ads.

In January's ruling, the court ruled 5-4 that unions and corporations, both for-profit and non-profit, have the right to use their general treasury funds to pay for television spots that criticize or praise a particular candidate. Citizens United v. FEC, 2010 DJDAR 949.

In previous elections, corporations and unions could only participate in federal elections by setting up political action committees, or PACs, which could then be used to make donations to candidates or fund independent expenditures. PACs are subject to regulation by the Federal Election Commission and can only accept up to $5,000 a year from each individual donor, thereby restricting how much they can spend.

The Supreme Court ruling gives unions and corporations the opportunity to play a much more significant role in endorsing or opposing a particular candidate, but it's not yet clear how much that will affect the November mid-term congressional elections.

According to FEC data, some unions and corporations have made direct independent expenditures already, but the vast bulk of election spending occurs in two months prior to Election Day.

"The real test is going to come in the weeks immediately preceding the November mid-term elections," said Dave Levinthal, the communications director for the Center for Responsive Politics, an elections watchdog group.

The big question is whether corporations and unions "come out full force" in making independent expenditures, or whether the landscape remains more or less unchanged, he added.

Many experts don't expect a deluge of corporate cash, a scenario that Democratic politicians, including President Barack Obama, have predicted.

That's because the vast majority of businesses do not necessarily want to get directly involved in the political process, according to campaign finance attorney Joseph Sandler, a member of Sandler, Reiff & Young in Washington and former general counsel of the Democratic National Committee.

"It's fair to say it appears unlikely that individual corporations will avail themselves of this decision," he said. "It will be trade associations, business groups, and unions."

What may also make corporations and unions think twice before spending is that the FEC has yet to formally respond to Citizens United. Therefore, there are no rules in place for such organizations to report independent expenditures out of their general treasury funds. There is also uncertainty over how much information politically active groups have to disclose about corporations or unions that donate money for use in elections.

"Most companies are waiting to see what the FEC does," said Brett G. Kappel, an expert in campaign finance law at Arent Fox in Washington.

The FEC is working on new rules, with draft proposals due by the end of September, said spokeswoman Judith Ingram.

In the meantime, there is some evidence that politically oriented groups are gearing up to take advantage of the new leeway they have to solicit money from corporations and spend those funds on political ads during election season.

Commonsense Ten, a Democratic group, and the conservative Club for Growth have both recently notified the FEC that they intend to form committees that will solicit unlimited donations. Commonsense Ten specifically stated that it wants to accept money from unions and corporations.

Experts predict any corporations that do want to engage in the political process in a more direct way are likely to contribute to groups like Commonsense Ten or set up arms-length organizations in order to distance themselves from whatever political speech they make.

Businesses, in particular, would not want to alienate potential customers by associating too closely with a particular campaign, said election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles.

Ideally, companies want an outcome where the candidate they support "knows what you are doing but no one else does," he added.

Although the arms-length group would in most cases have to disclose to the FEC which corporations contributed funds, that information would only become available later and only then to those who are inclined to search through the agency's data. Businesses can also donate money to trade associations and related groups, such as the U.S. Chamber of Commerce, which - even before Citizens United - spent millions on federal elections, usually to the benefit of the Republicans. Likewise, unions have always been a major source of cash in support of the Democratic Party.

As corporations and unions digest what exactly Citizens United allows them to do, the waters are further muddied by efforts in Congress to pass legislation intended to restrict the decision's impact.

Known as the DISCLOSE Act, it would, among other things, impose new disclosure requirements on independent expenditures. Among the provisions is one that would require corporate CEOs to appear on camera if their company is a major source of funding for an ad.

If enacted, the law would significantly blunt the impact of the Supreme Court ruling because it would increase the scrutiny of corporations that are politically active, said Arent Fox's Kappel.

"I think it would discourage people from contributing," he said.

The legislation has passed the House of Representatives but Democrats are struggling to attract the 60 votes needed to pass the Senate version. It is unlikely to become law in time for November's election, and those following the issue say that even if it did, it may be amended so that it doesn't go into effect until the 2012 elections.

Uncertainty over what Congress will do could deter corporations and unions from spending much this year, according to Loyola's Hasen. In fact, most experts agree it won't be until 2012, a presidential election year, that the real repercussions of Citizens United will be felt.

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July 16, 2010

BREYER TO STEP IN AS CHIEF DISSENTER?Following Stevens' Retirement, Breyer Could Assume His Position as Most Vocal Critic

By Lawrence HurleyDaily Journal Staff Writer

WASHINGTON - With Justice John Paul Stevens now retired, Justice Stephen G. Breyer looks ready to replace his former colleague as dissenter-in-chief on the U.S. Supreme Court.

Some legal observers think he could even take on a more prominent role as the leading liberal voice on the court.

Stevens, who served on the court for nearly 35 years, was long known for being the justice most likely to write dissenting opinions. It was just one of many roles associated with him, another being his skill as a strategist. But even before Stevens left the court at the end of last month, Breyer was exhibiting a similar inclination to write at length - and often - in dissent. In the term that just ended, only Stevens wrote more dissents than Breyer, 12 versus eight respectively. In contrast, five of the justices wrote four or fewer dissenting opinions. The statistics are similar if extended over the last five terms, according to Supreme Court website Scotusblog.com.

Last term, Stevens was also the only justice who was in the minority more than Breyer: 22 times compared with Breyer's 19.

Breyer's willingness to air his dissenting views in public extended beyond the court's rulings in argued cases. The 71-year-old also wrote a spirited dissent when the court granted a stay that prevented California's Proposition 8 trial from being televised.

"I believe this court should adhere to its institutional competence, its historical practice, and its governing precedent - all of which counsel strongly against the issuance of this stay," he wrote.

Later in the year, Breyer also penned a memorandum publicly criticizing the court for closing its grand front entrance to the public.

Appointed by President Bill Clinton in 1994 after serving on the 1st U.S. Circuit Court of Appeals for 14 years, Breyer's early years on the court were characterized in part by his deference to his more senior colleagues, including Chief Justice William H. Rehnquist, court experts say.

Breyer's increasing outspokenness has coincided with the ascendancy of Chief Justice John G. Roberts Jr., who was appointed in 2005. He has been "probably the most vocal critic of muscular rulings by the Roberts court that pushed the law sharply to the right," said Doug Kendall, president of the Constitutional Accountability Center, a left-leaning legal think tank.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, said that Breyer might be preparing to at least try to take on Stevens' mantle. Only Justice Ruth Bader Ginsburg, appointed a year earlier, has longer tenure on the court among the liberal ranks. Justice Sonia Sotomayor has only served for a year and Stevens' replacement, Elena Kagan, still awaits Senate confirmation.

If Breyer, who was a professor at Harvard Law School before he was appointed to the 1st Circuit, is seeking a more prominent role, it's not a move that many would have predicted, Harris said.

"There have been times when he has seemed more idiosyncratic in his views and less interested in playing a strategic or leadership role," she said.

But she noted that "a lot of people didn't see it coming" when Stevens first became more prominent.

Kendall expressed doubt about whether Breyer could effectively replace Stevens when it comes to engaging in intellectual battle with the conservative justices. Known for his pragmatic approach to the law, Breyer is unlikely to replicate Stevens in "taking on directly the arguments made by the conservatives over the meaning of the Constitution," said Kendall.

Still, Breyer has not just dissented on paper, he has also been vocal in criticizing the majority by reading summaries of his dissenting opinions from the bench, something justices do relatively rarely to signify the intensity of their opposition.

In the last term, he did so in three high-profile cases, including two decided on the last day. Some see those public utterances as a sign that Breyer is not just a passionate dissenter but also someone who wants to take the fight to the conservatives.

First, on June 21, he spoke out when the court ruled 6-3 that a Los Angeles group's political advocacy for foreign groups designated by the government as terrorist organizations could potentially run afoul of a federal law banning providing material support to terrorist groups. Holder v. Humanitarian Law Project, 2010 DJDAR 9347.

Breyer stated his concern that when the First Amendment is pitted against national security, the latter should not always prevail. "That never has been, and should not be, the law," he said.

Breyer then spoke from the bench twice on the final day of the term, beginning with the court's 5-4 decision in which it concluded that the Second Amendment right to bear arms applies to state and local regulations. McDonald v. Chicago, 2010 DJDAR 9899.

He was scathing of the conservative majority, questioning the idea that the right to bear arms is a fundamental right that should be applied to the states under the due process clause of the Fourteenth Amendment.

Breyer then spoke at length minutes later when the court issued another ruling in which the majority found that a section of the corporate reform and accounting law passed by Congress in the aftermath of the Enron Corp. scandal is unconstitutional. Free Enterprise v. Public Company Accounting Oversight Board, 2010 DJDAR 9997.

Georgetown's Harris, who was in the courtroom on the last day of the term, described Breyer's performance that day as "very significant" in part because "his spoken remarks were very strong and really well done."

Vince Chhabria, who clerked for Breyer in the 2002 term and is now deputy city attorney at the San Francisco City Attorney's Office, downplayed the idea that Breyer's dissents are a sign that he has become more outspoken.

Breyer has always been willing to speak out on issues he cares most strongly about, Chhabria said.

"It depends on the strength of his feelings on the subject," he added.

Chhabria pointed to Breyer's sharp dissent in 2007 when the court struck down school race integration programs in Seattle and Louisville, Ky. as an earlier example. Parents Involved in Community Schools v. Seattle School District No. 1, 2007 DJDAR 9798.

But it was not just in the court's written opinions that Breyer's voice was prominent in the 2009 term. In the sharp debate in January over whether the Prop. 8 trial in San Francisco should be televised, Breyer again led the dissenting liberals. In a 10-page opinion, Breyer questioned whether the court even had the authority to intervene over what was essentially a question of judicial administration. Hollingsworth v. Perry, 2010 DJDAR 665.

Even more unusual was the incident in May, in which Breyer publicly dissented when it was announced that the court's famous front entrance would be closed to the public for security reasons.

"I think the change is unfortunate and I write in the hope that the public will one day in the future be able to enter the court's Great Hall after passing under the famous words 'Equal Justice Under Law,'" Breyer wrote.

Both the Prop. 8 and door closure issues were not typical Supreme Court business and could both be viewed as matters in which the chief justice, as the head of the judiciary, might normally expect "a fair bit of deference," Georgetown's Harris said.

As Kendall of the Constitutional Accountability Center noted, Breyer "has certainly been willing to express his disagreement" with the chief justice.

Whether or not Stevens' departure leads to a greater role for Breyer remains an open question, but his former clerks believe he is capable of taking on such a role.

"Justice Breyer would be a very good candidate to fill the void as the leading progressive voice," Chhabria said.

Deanne E. Maynard, who chairs the Supreme Court practice group at Morrison & Foerster and clerked for Breyer during his first term, said his outgoing personality could also help him win the all important fifth vote, which often tends to be Justice Anthony M. Kennedy.

"The justice's personality is well suited to being a leader," she said. "He would be very comfortable in that role."

When Stevens announced his retirement, Harris, who clerked for him, admits she didn't immediately see an obvious successor.

"I wonder whether it could be Justice Breyer," she said. "It's well worth watching."

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July 9, 2010

STAYS WERE COMMON AT HIGH COURT

By Lawrence HurleyDaily Journal Staff Writer

WASHINGTON - One of the most distinctive features of the U.S. Supreme Court's just completed term was the justices' unusual willingness to intercede at the early stages of controversial cases through their power to stay lower court rulings.

Perhaps the most high profile example of this was the stay granted in January that prevented the broadcast of the blockbuster trial in San Francisco over the constitutionality of California's Proposition 8, the ballot initiative that banned gay marriage.

The Supreme Court also attracted attention for two other stays it granted, both in cases coming from the 9th U.S. Circuit Court of Appeals.

The first came in October, just weeks before Election Day, when the court acted to prevent the release of the names of people opposed to a same-sex partnership law in Washington state.

The second came in June, just before the end of the court's term. By staying a 9th Circuit ruling that upheld Arizona's campaign finance laws, the justices threw that state's election season into chaos. Their action meant a district court ruling that prevented publicly funded election subsidies from being distributed to candidates went into effect. The court will not decide whether it will hear the case on the merits until October, meaning the case will not be resolved before November's election.

Supreme Court experts are reluctant to read too much into stay applications, but all three attracted scrutiny, not least because they touched upon such hot-button issues.

Erwin Chemerinsky, dean of UC Irvine School of Law, described it as "unusual" for the court to grant three stays in such high profile cases in a single term.

"I do think it was surprising, but whether it is a trend or an aberration obviously can't be known yet," he said. Unless justices dissent from a decision to grant a stay, as four did in the Prop. 8 case, it is also impossible to know which ones voted in favor and whether others disagreed.

Troy D. Cahill, counsel at Akin Gump Strauss Hauer & Feld in Washington and a former staff attorney at the Supreme Court, cautioned against reading too much into the motives of individual justices.

The court is required to take into consideration various factors when deciding whether to grant a stay, including the likelihood that four justices will vote to hear the case on the merits, he said. Justices also consider to what extent the lower court ruling upends the status quo of established law. But, Cahill noted, the justices can differ over how to weigh the various factors.

"I don't think it's that the test is being manipulated or that there's any impropriety," he said of the three stays.

The court rarely grants stay applications. Most consist of last minute applications from death row inmates. Any individual justice can grant a stay, but in practice most applications are referred to the full court. Then, five votes are required. As with the Washington petition-signers case, the court often grants a stay of a lower court ruling with a view to conducting a full review of the case on the merits.

The court does not maintain statistics on how many stay applications are granted. Supreme Court experts say there are a handful in any given term, usually in capital cases. The most recent example of a stay in a death penalty case came in March when the court granted a stay of execution to convicted murderer Henry Skinner of Texas while it considers whether to hear his petition concerning DNA evidence that was never analyzed prior to his trial. Skinner v. Switzer, 10-70002.

How the justices can differ over whether to grant a stay was illustrated perfectly in the court's 5-4 vote in January over whether Chief Judge Vaughn R. Walker of the Northern District of California could allow the Prop. 8 trial to be broadcast.

The liberal justices, led by Justice Stephen G. Breyer, openly questioned whether the court even had the authority to intervene over what was essentially a question of judicial administration. Hollingsworth v. Perry, 2010 DJDAR 665.

In the unsigned per curiam opinion, the conservative majority said a stay was warranted because Walker did not follow the necessary procedures for changing local court rules, including allowing proper time for public comment.

Breyer wrote a 10-page dissenting opinion in which he listed the various factors the court is required to consider before granting a stay. "This case, in my view, does not satisfy a single one of these standards," he wrote.

The justices disagreed on "virtually every element of the test," Akin Gump's Cahill noted.

In the Washington state case, the Supreme Court's intervention meant the names of those who signed a petition in opposition to a law that granted benefits to same sex partners would not be released prior to Election Day last year.

The state said it was required to disclose the names under the state Public Records Act but it faced opposition from various groups that oppose gay marriage rights.

In June, the Supreme Court decided the case narrowly, without reaching the question of whether the names should be released. Doe v. Reed, 2010 DJDAR 9570.

Instead, the court upheld the general right of states to release the names of people who sign petitions to put issues before a popular vote, holding on an 8-1 vote that the First Amendment rights of those who sign petitions are not automatically violated.

But the court said people who sign the petition could make case-by-case challenges to the release of names if they can persuade a federal judge that there is a likelihood of threats or harassment. The Washington petition signers now have a chance to do that before the state can release the names.

The eventual outcome in the case illustrates how the court's decision to grant a stay does not necessarily foreshadow the final ruling, Supreme Court watchers say.

Election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles, noted the stay in the case was not a surprise because the Supreme Court had merely maintained the status quo - specifically that the names were not in the public domain - until it had a chance to review the case on the merits.

But Hasen and others feel quite differently about the stay in the Arizona elections case because the stay was sure to have a direct impact on election season despite the fact that the court hadn't yet decided whether to hear the case on the merits.

The stay was "really surprising," Hasen said, because it seemed to contradict Supreme Court precedent stating that courts should not issue decisions that affect how elections are conducted in the middle of election season.

"It's hard to see how the Supreme Court can justify changing the rules," he said.

While the parties brief the case, a provision of a state campaign finance law, known as the Citizens Clean Elections Act, that provides extra public subsidies to candidates who are running against privately funded candidates, is on hold. Candidates in this year's elections who opted to take the subsidies, including sitting governor Jan Brewer, a Republican, are now at a disadvantage against candidates raising funds privately.

The law gives candidates the opportunity to receive public financing if they give up their right to raise private funds. The amount of funding varies depending on whether the candidate faces an opponent in the primary or general election. The provision of the law under scrutiny allows the candidate to get additional funding if they are being outspent by someone raising funds privately. Primary elections in the state take place on August 24. McComish v. Bennett, 09A1163.

Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law, who is in favor of campaign finance reform, described the court's action as "very irresponsible" because it threw "the entire system into chaos."

The decision to intervene indicates to Youn that the justices "are really not looking at the real-world consequences."

Nicholas C. Dranias, an attorney at the conservative Goldwater Institute in Phoenix, Ariz., who filed the application in the case on behalf of various political candidates, said he viewed the Supreme Court's actions quite differently.

Although the Arizona law was passed in 1998, the legal challenge was launched immediately after the Supreme Court issued a 2008 campaign finance ruling that cast into doubt the future of public financing. Davis v. FEC, 2008 DJDAR 9585. In that case, the court struck down a provision of the 2002 McCain-Feingold campaign finance law that increased the contribution caps for candidates running against self-financed opponents.

Dranias conceded that seeking a stay was a long shot but said he did so because he was so confident that the Arizona law was unconstitutional based on the ruling in Davis.

Criticism of the court's decision to grant the stay "has surface level appeal," he added, but ultimately, "the First Amendment is more important than the sanctity of politicians getting taxpayer funds."

Ultimately, the fact that the court granted the three stays in such a short period may have as much to do with the lawyers who filed the applications as with the justices, Akin Gump's Cahill noted.

In controversial cases in which lawyers like Dranias have strongly held convictions, "litigants are more likely to exhaust every potential opportunity," he said. "It's an illustration of the zealousness of the lawyers."

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July 6, 2010

9th Circuit Reversals See Decline

By Lawrence HurleyDaily Journal Staff Writer

WASHINGTON - It was a good year before the U.S. Supreme Court for the much-maligned 9th U.S. Circuit Court of Appeals.

Traditionally, the 9th Circuit, which is often portrayed as out of touch, is the court most reversed by the Supreme Court. In the 2009-2010 term, the circuit was reversed or vacated 12 times and affirmed four times.

That reversal rate may seem high, but it's lower than in recent years. Last term, the court was reversed in 14 out of 16 cases. The 9th Circuit's reversal rate also compares well with some other circuits. The 7th Circuit was reversed in 10 of 11 cases and the 6th Circuit was reversed in all seven of its cases under review, according to statistics prepared by SCOTUSblog.com.

"I think we did really well," he said. The court's 75 percent reversal rate was actually slightly lower than the average for all the circuits this term, he added.

One of the court's leading conservative judges, Diarmuid F. O'Scannlain, described the overall rate as "a relatively good year for our court," although he pointed out that half of the reversals were unanimous.

Of the cases that were affirmed, only one was unanimous, he added.

For one of his liberal colleagues, Judge Kim McLane Wardlaw, the Supreme Court's focus on other circuits was welcome.

"I think the Supreme Court this year was an equal opportunity reversal machine," she said. In recent years, the justices "seemed to have it in for us," Wardlaw added.

The 9th Circuit reversal rate might have been higher but for two cases in which most Supreme Court watchers expected the justices to overrule the appeals court but that ended up coming out the other way.

One was a case in which the 9th Circuit, in an opinion by Judge A. Wallace Tashima, said that a Washington state public records law did not infringe on the First Amendment rights of anti-gay marriage campaigners who signed a petition calling for a referendum on a state law granting benefits to same-sex couples. The law requires names of petition signers to be released.

The Supreme Court, which initially granted a stay preventing the names from being released before Election Day in November 2009, ended up affirming the 9th Circuit on narrow grounds. Doe v. Reed, 2010 DJDAR 9570.

The court found on an 8-1 vote that the public records law was not unconstitutional in all situations but allowed the anti-gay rights activists the opportunity to argue on remand that it could be unconstitutional in situations where there is a possibility of threats and intimidation.

"They punted the major issue," said Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law.

The second case was a dispute over whether UC Hastings College of the Law could refuse to register a Christian group that wanted to bar gays from active membership. The 9th Circuit held in an unsigned opinion that there was no constitutional problem.

The Supreme Court held 5-4 that the law school's "all comers" policy that requires all student groups to allow anyone to join as members did not violate the First Amendment rights of the Christian Legal Society. Christian Legal Society v. Martinez, 2010 DJDAR 9821.

The court did not reach the bigger question of whether the law school's nondiscrimination policy, which prevents students from, among other things, discriminating on the basis of sexual orientation, itself discriminates against certain religious groups.

This case came out the way it did in part because it proved to be "factually messy and complicated" once the justices delved deep into the facts, according to Andrew J. Pincus, a partner in Mayer Brown's Supreme Court and appellate practice in Washington.

For Kozinski, who was part of the 9th Circuit panel, the case was an example of the kind of difficult issues the Supreme Court is required to take up.

"It could have come out either way," he said.

In the final analysis, the judges on the 9th Circuit who participated in those cases, "have to take a lot of comfort in these outcomes," said Thomas C. Goldstein, who co-heads the Supreme Court practice at Akin Gump Strauss Hauer & Feld and is SCOTUSblog's publisher. That's because the justices, while initially showing skepticism about the lower court's rulings, ended up endorsing them.

But, as in most years, there were some cases that fit the definition of a classic, liberal 9th Circuit ruling that the Supreme Court was likely to reverse.

The most obvious example was a habeas corpus case concerning a convicted child rapist. The Supreme Court initially scheduled the case for oral argument but then took the unusual step of summarily reversing it before the argument took place. McDaniel v. Brown, 2010 DJDAR 441.

The 9th Circuit ruling, written by Wardlaw, held that the district court could have considered evidence that wasn't in the record that questioned the reliability of the prosecution's DNA expert. The Supreme Court disagreed on a unanimous vote.

Wardlaw said she "totally expected" that outcome after the defendant's lawyers adopted a different approach at the Supreme Court level. The case was part of a trend in which the Supreme Court has been "further narrowing the habeas corpus right," she added.

The justices also summarily reversed the 9th Circuit in a second habeas corpus case in which the appeals court, in an opinion by Judge Stephen Reinhardt, found that the defendant had received ineffective assistance of counsel. In the per curiam opinion, the Supreme Court explicitly pointed out flaws and discrepancies in Reinhardt's analysis. Wong v. Belmontes, 2009 DJDAR 16107.

As for the other circuits with high reversal rates, habeas corpus was also the reason why the 6th Circuit attracted the attention of the justices. Of the seven cases the Supreme Court heard, five, including one summary reversal, were habeas corpus cases in which the appeals court had granted relief to the defendant only to be second-guessed by the justices.

The 7th Circuit, meanwhile, has had a high reversal rate in the past, but to have 10 cases reversed in one term is "certainly a disproportionate share of the docket," according to Arthur Hellman, a professor at the University of Pittsburgh School of Law.

Unlike the 9th Circuit, known for reaching liberal positions that are reversed by the more conservative Supreme Court, the 7th Circuit is more likely to issue rulings that are more conservative than the high court, he added.

One example this term was an immigration case in which the Obama administration, which won before the 7th Circuit, declined to defend the appeals court ruling before the Supreme Court. The 7th Circuit held that federal courts do not have the jurisdiction to review motions to re-open deportation proceedings. The Supreme Court reversed on a unanimous vote. Kucana v. Holder, 2010 DJDAR 903.

"There, the 7th Circuit was way out of line," Hellman said.

Akin Gump's Goldstein said the reversal rates for other circuits this term reinforces the idea that the 9th Circuit's traditionally high rate of reversal is as much a result of its diverse and heavy caseload as it is about the ideology of its judges.

"It's not that the Supreme Court has lost confidence in the 9th Circuit across the board," he added.